Can a claimant's lawyer send copies of letters to the insured while negotiating a claim with the liability insurer?

Plain-English summary

A lawyer negotiating a claim with a liability insurance company, where there was no indication that an attorney had yet been retained to act for the insurance company or for the individual insured, asked whether the former Canon 9 permitted forwarding copies of correspondence addressed to the insurer to the insured.

The committee saw no objection per se to the practice, so long as the stated assumption (the absence of counsel representing both the insurer and the insured) held true. In that context, the committee did not read Canon 9 as precluding an attorney from contacting an individual even though that individual's interests might be represented by an insurance company or a claims representative acting on its behalf. The committee cautioned, however, that the attorney must remain sensitive to the part of Canon 9 that prohibits advising or misleading a party not represented by counsel, so any copied letter had to be framed in that light. Because the inquiry did not describe the precise correspondence, the committee could not say in advance whether a particular letter would offend that part of Canon 9.

Currency note

This opinion was issued in October 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 9 on communicating with adverse parties. Communications with represented persons are now governed by Rule 4-4.2, and communications with unrepresented persons by Rule 4-4.3, of the Rules Regulating The Florida Bar (Model Rules 4.2 and 4.3). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can I copy the insured on my letters to their insurer during claim negotiations?

A: Under this opinion, yes, where no attorney represents the insurer and the insured. The committee saw no objection per se to forwarding copies of correspondence to the insured in that situation.

Q: What limit did the committee place on the practice?

A: The lawyer had to stay sensitive to the prohibition on advising or misleading a party not represented by counsel, so each copied letter had to be framed accordingly.

Q: Does the answer change if a lawyer represents the insurer and insured?

A: The committee's conclusion rested on the assumption that no counsel represented both. It did not approve contacting the insured where counsel had been retained for the insurer and insured.

Background and rules framework

The opinion applied the former Canon 9, which governed a lawyer's communications with adverse parties and the prohibition on advising or misleading an unrepresented party. Those subjects are now divided between Rule 4-4.2 of the Rules Regulating The Florida Bar (communication with a represented person) and Rule 4-4.3 (dealing with an unrepresented person); the Model Rule analogues are Rules 4.2 and 4.3.

Citations and references

Rules of Professional Conduct:

• Canon 9 [Canons of Professional Ethics; communicating with adverse parties; not advising or misleading the unrepresented]

See also

• FL Bar Ethics Op. 70-33: Negotiating With Insurance Adjusters
• FL Bar Ethics Op. 69-40: Interviewing an Opposing Party Without Consent

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-26/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-26.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 67-26
October 20, 1967
Advisory ethics opinions are not binding.
In the course of negotiation with a liability insurance company, an attorney for the claimant may forward to the insured copies of correspondence addressed to the insurance company if there is no indication that an attorney has been retained to act for the insurance company and the insured.
Canon: 9
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar inquires whether in negotiating a claim with a liability insurance company, where there is no indication that an attorney has yet been retained to act for the insurance company or for the interests for the individual insured, it is proper under Canon 9 to forward copies of correspondence addressed to the insurance company to the insured.
We see no objection per se to this practice so long as the stated assumption, i.e., the absence of counsel representing both the insurer and the insured, is correct. In other words, in context of the question we do not construe Canon 9 as precluding an attorney from contacting an individual even though the individual's interests might then be represented by an insurance company or a claims representative acting on its behalf. Naturally, the attorney should always be sensitive to the requirement of Canon 9 precluding advising or misleading a party not represented by counsel. Accordingly, any letter a copy of which is to be furnished to the insured must be framed in this light. Inasmuch as the inquiry does not outline the precise nature of the correspondence, it is not possible for us to apprehend in advance whether a particular letter would offend that portion of Canon 9.